Adoption of Joshua S. 9/6/05 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D045067

Case Date: 12/14/2005

Preview:Filed 9/6/05

CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Adoption of JOSHUA S., a Minor. ANNETTE F., Plaintiff and Respondent, (Super. Ct. No. JA46053) v. SHARON S., Defendant and Appellant. D045067

APPEAL from an order of the Superior Court of San Diego County, Cynthia Bashant, Judge. Reversed.

Blatchley & Blatchley and William E. Blatchley; John L. Dodd & Associates and John L. Dodd for Defendant and Appellant. Luce, Forward, Hamilton & Scripps LLP and Charles A. Bird for Plaintiff and Respondent. Judith E. Klein for Minor.

Sharon S., as the result of artificial insemination, gave birth to a son, Joshua S. Sharon signed an independent adoption agreement that, while preserving her parental rights and control of the child, allowed the adoption of Joshua by her partner, Annette F. Annette filed a petition to adopt Joshua as a second parent. Sharon moved to dismiss the petition on several bases, including that the adoption was unauthorized by statute. The motions were denied. Sharon petitioned for and this court granted a writ of mandate, holding that an adoption where a consenting parent does not relinquish all parental rights has no statutory basis. The Supreme Court granted Annette's petition for review. The Supreme Court reversed our judgment, finding that second parent adoptions are lawful. Additional related litigation followed. As part of that process, Annette was awarded $92,049.15 in attorney fees under the "private attorney general" doctrine embodied in Code of Civil Procedure section 1021.5.1 Sharon appeals the award of fees. BACKGROUND A. Sharon v. Superior Court Sharon and Annette were in a committed relationship from 1989 through mid2000. In 1996 Sharon was artificially inseminated and gave birth to Zachary. While retaining her parental rights, Sharon consented to Annette's adoption of the child. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 422.)

1 All further statutory references are to the Code of Civil Procedure unless otherwise specified.

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In 1999 Sharon was again artificially inseminated by the same sperm donor and gave birth to Joshua. Sharon and Annette made the same agreement allowing Annette to adopt Joshua while Sharon retained her parental rights. Thereafter the relationship between Sharon and Annette deteriorated and Annette left the family home. Annette filed a motion for an order of adoption. Sharon moved for court approval to withdraw her consent to adopt and to dismiss Annette's petition. Sharon relied on several arguments, including that the form of second parent adoption sought was unlawful. (Sharon S. v. Superior Court, supra, 31 Cal.4th at pp. 422-424.) The trial court denied the motion to dismiss the adoption. Sharon filed and this court granted by a divided opinion a petition for writ of mandate, holding that the form of second parent adoption sought by Annette was without statutory basis. Our Supreme Court granted Annette's motion for review and reversed, finding that second parent adoptions like that sought by her were lawful. The Supreme Court remanded the matter for resolution of factual issues related to Sharon's claim that her consent for the adoption was gained by fraud and duress and that the attorney who originally represented her and Annette failed to obtain a signed waiver regarding conflict of interest. (Sharon S. v. Annette F., supra, 31 Cal.4th at pp. 422-424, 445-446.) B. Motion for Award of Attorney Fees On June 10, 2004, before the resolution of the duress and conflict of interest issues, Annette moved for an award of attorney fees in the amount of $138,939.78 pursuant to section 1021.5. Annette sought the fees for legal services provided by her counsel, Charles Bird of the firm Luce, Forward, Hamilton and Scripps (Luce), in the 3

Court of Appeal and Supreme Court leading to the decision in Sharon S. v. Superior Court, supra, 31 Cal.4th 417. The motion noted that while the matter was not yet fully resolved, Annette had prevailed in the Supreme Court on second parent adoption issues that were of benefit to a large class of persons and that she was, therefore, entitled to an award of fees pursuant to the private attorney general provisions of section 1021.5 for that portion of the case. Annette and Luce had entered into a written engagement agreement providing for payment of fee at a described rate and for the reimbursement of expenses. Bird was aware that Annette might not be able to pay the fees if the case required action by the California Supreme Court. He assured her he would continue to represent her regardless of her ability to pay because of the importance of the legal issues involved. Bird explained that Luce would take the chance that Annette would prevail and she would be awarded attorney fees based on the public benefit resulting from the case. Sharon opposed the motion. C. Award of Fees The trial court awarded $92,049.15 in attorney fees to Annette. The court noted that fees could be awarded to a successful party if the action resulted in a significant benefit to the general public or to a large class of persons and when the necessity and financial burden of private enforcement were such that the award was appropriate. The court noted that Annette was successful as to the issues resolved by the Supreme Court. The trial court found the Supreme Court's decision conferred a significant nonpecuniary benefit on a large class of persons and resolved an important issue of law. 4

The trial court noted that before awarding fees it was required to compare the litigant's private interest in the case with the financial burden of private enforcement. The court stated: "In this case, there is no doubt in this court's mind that Mr. Bird agreed to represent [Annette] in the writ proceedings, not to pursue [Annette's] or Joshua's best interests, or even because he had any expectation of being paid for the numbers of hours he spent, but purely because he was concerned about vindicating a right important to the general public." The court stated it was extremely difficult to say whether the ultimate cost of the writ proceeding was more than the value of the case to Annette. The court noted, however, that the threat to second parent adoptions contained in the Court of Appeal's opinion was what motivated Annette to hire Mr. Bird. The court concluded Mr. Bird was acting as a private attorney general within the meaning of section 1021.5 and awarded Annette $92,049.15 in fees. DISCUSSION Sharon argues the trial court erred in awarding Annette attorney fees pursuant to section 1021.5. Sharon takes issues with the award on several bases. It is necessary we deal with only one. We conclude the trial court erred in awarding Annette attorney fees because it is clear she had a strong, objectively ascertainable private interest justifying the litigation and the burdens in bringing it. That being the case, she was not entitled to attorney fees pursuant to section 1021.5.

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A. Law 1. Section 1021.5 In our system of justice, litigants as a rule are required to pay their own attorney fees. (Alyeska Pipeline Service Co. v. Wilderness Society (1975) 421 U.S. 240, 247; Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) An exception to the rule is the private attorney general doctrine embodied in section 1021.5. That section allows a court to award attorney fees to a successful party in any action that "has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any." (

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